People v. Agar

887 N.W.2d 662, 314 Mich. App. 636, 2016 WL 399933, 2016 Mich. App. LEXIS 190
CourtMichigan Court of Appeals
DecidedFebruary 2, 2016
DocketDocket 321243
StatusUnpublished
Cited by12 cases

This text of 887 N.W.2d 662 (People v. Agar) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Agar, 887 N.W.2d 662, 314 Mich. App. 636, 2016 WL 399933, 2016 Mich. App. LEXIS 190 (Mich. Ct. App. 2016).

Opinions

STEPHENS, J.

Defendant appeals as of right his jury trial convictions of distributing child sexually abusive material, MCL 750.145c(3); possessing child sexually abusive material (three counts), MCL 750.145c(4); using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(d); and resisting and obstructing a police officer, MCL 750.81d(l). Defendant was sentenced to serve 18 months to 7 years for his convictions of distribution and use of a computer to commit a crime, 18 months to 4 years for each count of possession, and 1 to 2 years for resisting and obstructing a [639]*639police officer, the sentences to be served concurrently. We vacate in part and remand for a new trial.

I. BACKGROUND

Defendant’s computer-related convictions arose after his Internet protocol (IP) address was identified by Detective Eric Stevens as one that was possibly trading or sharing child pornography.

At defendant’s preliminary examination on the distribution and possession charges, Detective Stevens testified as an expert in computer forensics to explain the Ephex software that he used to find defendant’s IP address and the Shareaza software he believed defendant used to possess and share child pornography. After a second preliminary examination on the amended information that added charges of resisting and obstructing an officer and using a computer to commit a crime, defendant was bound over on all charges.

Defendant moved pretrial for the appointment of a forensic computer expert witness to rebut Detective Stevens and to investigate and support defendant’s theories of how defendant could have inadvertently downloaded child pornography. Defense counsel and the court admitted to a lack of sophistication regarding computer issues in general. Defendant argued that the appointment of an expert witness was necessary to examine defendant’s computer, to prepare for trial, and to effectively rebut the testimony offered by the prosecution’s expert, Detective Stevens. Defendant identified Larry A. Dalman, a retired career state police officer, as the expert he wanted to retain. Defendant stated that he was indigent and needed $1,500 of public funds to retain Dalman.

[640]*640The prosecution’s position was that defendant had not shown a sufficient “nexus between the facts of the case and the need for an expert” as required by People v Jacobsen, 448 Mich 639, 641; 532 NW2d 838 (1995) (quotation marks and citation omitted). Further, the prosecution argued that defendant only wanted an expert because the prosecution had one and to grant defendant’s request would make all indigent requests for public funds for an expert automatically approved. The prosecution also asserted that defendant had not shown that any expert he retained would obtain different results from his examination of the computer than Detective Stevens had or that the detective’s methodology was deficient.

The trial court denied defendant’s motion for an expert. The court concluded that, based on its review of the caselaw, there needed to be “a greater connection between the specifics of the issue that [were] involved in [defendant’s] case and the need for an expert in order to get to the meat of the matter.” The court identified that defendant was requesting an expert to show that in the process of copying the hard drives of others, defendant inadvertently copied child sexually abusive material to his own computer. The court found the theory plausible, but also that it was a fairly simple concept. The court held that an expert was not critically important to defendant’s defense.

II. ABUSE OF DISCRETION

Defendant first claims that the trial court abused its discretion by denying his request for public funds to retain his own computer forensics expert. We agree.

“This Court reviews for abuse of discretion a trial court’s decision whether to grant an indigent defendant’s motion for the appointment of an expert wit[641]*641ness.” People v Carnicom, 272 Mich App 614, 616; 727 NW2d 399 (2006), citing MCL 775.15. An abuse of discretion occurs when a trial court selects an outcome that is not within the range of reasonable and principled outcomes. Id. at 617.

MCL 775.15 authorizes a court to provide public funds for indigent defendants to retain expert witnesses. However, “[a] trial court is not compelled to provide funds for the appointment of an expert on demand.” Carnicom, 272 Mich App at 617, citing People v Tanner, 469 Mich 437, 442; 671 NW2d 728 (2003). Under MCL 775.15, the defendant bears the burden of demonstrating that “there is a material witness in his favor within the jurisdiction of the court, without whose testimony he cannot safely proceed to a trial. . . .” The first portion of defendant’s burden is to “show a nexus between the facts of the case and the need for an expert.” Jacobsen, 448 Mich at 641 (quotation marks and citation omitted). Defendant met that burden.

Defendant in this case cited his need for an expert as threefold: (1) to support his defense that the child sexually abusive material was inadvertently downloaded to his computer when, in the course of performing a repair, he copied another person’s hard drive to his computer; (2) to support his defense that files containing child pornography could have been on his computer as the result of his unprotected and open wireless network; and (3) to explain that the Shareaza program he copied was already programmed to share files and, once downloaded onto his computer, resumed file-sharing. Detective Stevens’s testimony was the centerpiece of both of the preliminary examinations and the trial. Much of the testimony from Detective Stevens involved the technical process for extracting [642]*642the thumbnail fingerprints of child pornography from defendant’s computer and the process for initially identifying the IP address to which the files migrated. Additionally, in this case the defense was that the files were loaded at a time when defendant did not have control of the computer. Even Detective Stevens was unable to identify when the files were loaded. Thus, the logical nexus is clear.

The prosecution also opposed the motion on the basis that defendant did not offer any evidence that the expert’s examination of the computer would produce any different results than Detective Stevens had, and that the mere possibility that the expert might be of assistance to defendant was not enough to warrant appointment of an expert at public expense. The prosecution cited Jacobsen, Carnicom, and Tanner. We are troubled by the logic that a defendant who admits technical ignorance and who has no resources from which to acquire technical expertise is asked to present evidence of what evidence an expert would offer in order to receive public funds to hire the expert. However, even assuming that these cases require some showing of what the expert would do to assist defendant, we find an abuse of discretion in this case because it is factually distinguishable from Jacobsen, Tanner, and Carnicom.

In Jacobsen, the defendant requested public funds for the appointment of an expert to testify that, due to an unreasonable delay in conducting a Breathalyzer test, the results of the tests were unreliable. Id. at 640-641.

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Cite This Page — Counsel Stack

Bluebook (online)
887 N.W.2d 662, 314 Mich. App. 636, 2016 WL 399933, 2016 Mich. App. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-agar-michctapp-2016.